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]]>uncharted-territoryhttps://www.techdirt.com/comment_rss.php?sid=20180123/13034739065Mon, 23 Oct 2017 13:39:24 PDTGoogle Removed Catalonian Referendum App Following Spanish Court OrderMike Masnickhttps://www.techdirt.com/articles/20171020/13145938450/google-removed-catalonian-referendum-app-following-spanish-court-order.shtml
https://www.techdirt.com/articles/20171020/13145938450/google-removed-catalonian-referendum-app-following-spanish-court-order.shtml
Last month, we wrote about the crazy situation in Spain, where the government was so totally freaked out about a Catalonian referendum on independence that it shut down the operators of the .cat domain, arrested the company's head of IT for "sedition" and basically shut down a ton of websites about the referendum. The Washington Post now has an article with even more details about the digital attacks in both directions around the Catalonian independence referendum, including hack attacks and DDoS attacks. But one thing caught my eye. Apparently, the supporters of the referendum had created an app called "On Votar 1-Oct." The app had a bunch of the expected functions:

The app, available on Google Play until just before 7 p.m. on Friday, helps people to find their polling station via their address and shows the closest polling stations on Google Maps via GPS, the name of the town or keywords.

It also allows users to share links to polling station locations.

But the Spanish government was so freaked out by the referendum and anything related to it, that it ran and got a court order demanding Google take the app out of Google's app store:

The court order told Google Inc—at 1600 Amphitheatre Parkway Mountain View CA 94043 (USA)—to take down the app located at that URL and also to block or eliminate any future apps submitted by the user with e-mail address "onvotar1oct@gmail.com" or identifying as "Catalonia Voting Software".

The judge says in her ruling that the tweet with the app link is "only a continuation of the actions of the [Catalan government] to block" Constitutional Court and High Court orders "repeatedly".

In the Washington Post article, the CTO of the Catalonian government explains why this is so disappointing:

“I’m a tech guy,” says Jordi Puigneró, chief technology officer of the Catalonian government. “So I’ve always been a great fan of Google and its principles of respect for digital rights. But now I’m really disappointed with the company.” (Puigneró’s office was also occupied by police during the referendum, he says.)

And you can understand why he's disappointed. But, the real problem here, seems to be going back to the same problem we keep identifying over and over again: deep centralization of the digital world. Part of the very promise of Android was that it was supposed to be open, and people weren't supposed to be locked into just Google's app store. And, indeed, there are competing app stores -- but the general argument around them (with the possible exception of Amazon's competing Android app store) is that if you want to keep your device secure, you'll only download via Google's app store.

And then we're back to a problem where there's a centralized choke point for censorship -- one which the Spanish government is able to exploit to make that app much more difficult to access. Google, for its part, said it took the app down because it had received a valid court order. And, that's true, but it's also opening up yet another path to widespread censorship. Google has stood up against similar situations in the past, but the decision of whether or not a movement should be stifled should never come down to whether or not a giant company like Google decides its worth taking a moral stand against a legal court order. The problem is much more systemic, and its built into this world where we've started to build back up gatekeepers.

For nearly two decades, I've argued that the real power of the internet was not -- as many people initally argued -- that it got rid of "middlemen," but rather that the middlemen turned into enablers rather than gatekeepers. In the old world, when only some content could get released/published/sold/etc., you had to rely on gatekeepers to choose which tiny percentage would get blessed. The power of internet platforms was that they became enablers, allowing anyone to use those platforms and to publish/release/sell/distribute things themselves, often to a much wider audience. But there'a always a risk that over time, former enablers become gatekeepers. And it's a fear we should be very conscious about -- even if it's not done on purpose.

To be clear, I don't think Google wants to be a gatekeeper around things like apps. It would prefer not to be. But because the marketplace has become so important, and because Google's role is so central, it almost has no choice. And when governments start issuing court orders to take down apps, suddenly Google is left with few good options. Either it censors or it picks fights with a government. And even if many of us would probably support and cheer on the latter as a choice, we should be concerned that this is even an issue at all. The solution has to be less reliance on centralized platforms and centralized choke points. Catalonians shouldn't have to rely on Google to get a simple voting app out to the public. The next big breakthroughs need to be towards getting past such bottlenecks.

The economy is important — very important. But is that because it matters in and of itself, or because it's the engine for achieving the things we really do care about? Here at Techdirt we've always been strong advocates of the free market, but we've never been absolutists about things like regulation, and we believe it's very important to explore these issues in detail. This week on the podcast we're joined by James Allworth, co-host of the Exponent podcast and author of a recent post entitled Prioritizing Economics is Crippling the U.S. Economy, to discuss entrepreneurship, democracy, the economy and more.

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]]>or-vice-versahttps://www.techdirt.com/comment_rss.php?sid=20170725/12294037860Thu, 19 Jan 2017 11:45:32 PSTUN Independent Expert On Promotion Of Democracy Calls On Governments To Stop Persecuting WhistleblowersMike Masnickhttps://www.techdirt.com/articles/20170119/00434736518/un-independent-expert-promotion-democracy-calls-governments-to-stop-persecuting-whistleblowers.shtml
https://www.techdirt.com/articles/20170119/00434736518/un-independent-expert-promotion-democracy-calls-governments-to-stop-persecuting-whistleblowers.shtml
Alfred de Zayas, who is the UN's "Independent Expert on the promotion of a democratic and international order" has put out quite a statement in support of President Obama's decision to commute Chelsea Manning's sentence. But de Zayas didn't stop there. He went on to point out that the US government and other governments have been persecuting many other whistleblowers around the world, including Ed Snowden and Julian Assange, and that should stop:

I welcome the commutation of sentence of Chelsea Manning and her forthcoming release in May. There are, however, many whistleblowers who have served the cause of human rights and who are still in prison in many countries throughout the world. It is time to recognize the contribution of whistleblowers to democracy and the rule of law and to stop persecuting them.

I call on Governments worldwide to put an end to multiple campaigns of defamation, mobbing and even prosecution of whistleblowers like Julian Assange, Edward Snowden, the Luxleakers Antoine Deltour and Raphael Halet and the tax corruption leaker Rafi Rotem, who have acted in good faith and who have given meaning to article 19 of the International Covenant on Civil and Political Rights on freedom of expression. Whistleblowers who are serving prison sentence in many countries should be pardoned.

Whistleblowers are human rights defenders whose contribution to democracy and the rule of law cannot be overestimated. They serve democracy and human rights by revealing information that all persons are entitled to receive. A culture of secrecy is frequently also a culture of impunity. Because the right to know proclaimed in article 19 of the International Covenant on Civil and Political Rights is absolutely crucial to every democracy, whistleblowers should be protected, not persecuted.

The statement goes on for a few more paragraphs and concludes:

It is time for this abnormal and inhuman situation to end.

Of course, this kind of statement will mostly be ignored by those in power -- and where not ignored, it will likely be mocked or attacked. But it is an important and useful statement. In the hype and buzz around these individuals, the underlying facts often get buried. But it remains the case that the individuals de Zayas named have focused on revealing to the public important information that powerful people have tried to keep secret, often exposing massive government overreach or outright lies.

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]]>take-thathttps://www.techdirt.com/comment_rss.php?sid=20170119/00434736518Wed, 23 Nov 2016 11:48:29 PSTAlex Halderman Clarifies: Not Sure If Election Was Hacked, But, Uh, Shouldn't Someone Be Checking To Make Sure?Mike Masnickhttps://www.techdirt.com/articles/20161123/10515836125/alex-halderman-clarifies-not-sure-if-election-was-hacked-uh-shouldnt-someone-be-checking-to-make-sure.shtml
https://www.techdirt.com/articles/20161123/10515836125/alex-halderman-clarifies-not-sure-if-election-was-hacked-uh-shouldnt-someone-be-checking-to-make-sure.shtmlasking for a recount in certain battleground states, where it's possible there were some e-voting irregularities. As we noted in our post, the story would barely be worth mentioning if one of the people involved wasn't Alex Halderman, a computer science professor we've been talking about for nearly a decade and a half, going back to when he was a student. Halderman is basically the expert on e-voting security -- so when he says something, it's worth paying attention.

Halderman has now posted something of a follow-up to the NY Magazine article clarifying his views and what he's suggesting. He's not saying there's evidence of a hack, but basically saying that no one knows if there was a hack or not, and because of that, there should be a recount as a way to audit the results to see if there were any irregularities.

After the election, human beings can examine the paper to make sure the results from the voting machines accurately determined who won. Just as you want the brakes in your car to keep working even if the car’s computer goes haywire, accurate vote counts must remain available even if the machines are malfunctioning or attacked. In both cases, common sense tells us we need some kind of physical backup system. I and other election security experts have been advocating for paper ballots for years, and today, about 70% of American voters live in jurisdictions that keep a paper record of every vote.

There’s just one problem, and it might come as a surprise even to many security experts: no state is planning to actually check the paper in a way that would reliably detect that the computer-based outcome was wrong. About half the states have no laws that require a manual examination of paper ballots, and most other states perform only superficial spot checks. If nobody looks at the paper, it might as well not be there. A clever attacker would exploit this.

There’s still one way that some of this year’s paper ballots could be examined. In many states, candidates can petition for a recount.

So, in effect, Halderman isn't saying that he's got evidence of e-voting fraud, but is simply arguing that if no one checks, no one will ever know. So we should check in order to be sure that there wasn't hacking. That's... pretty sensible.

Examining the physical evidence in these states — even if it finds nothing amiss — will help allay doubt and give voters justified confidence that the results are accurate. It will also set a precedent for routinely examining paper ballots, which will provide an important deterrent against cyberattacks on future elections. Recounting the ballots now can only lead to strengthened electoral integrity, but the window for candidates to act is closing fast.

Basically, the only way we can actually get an effective audit to see if there were any voting irregularities is to ask for a recount. The problem, of course, is a political one. If the Clinton campaign does call for a recount, it will immediately be seen as a political play, and lead to a ton of negative publicity. My guess is that the campaign won't want to go there. If we lived in a time where people were intellectually honest, the campaign could present it exactly the way Halderman has framed it -- not as a claim that they believe fraud happened, but rather as a way to ensure that the e-voting machines were accurate and not manipulated -- but does anyone think that the press (either those that supported or those that opposed Clinton) would treat it that way? It would become a complete mess in about two-and-a-half seconds.

And, that's unfortunate. Because as Halderman points out (and, like us, has been pointing out for over a decade), it absolutely is possible to hack most e-voting machines. Especially if the attacker is determined enough to do so:

Here’s one possible scenario. First, the attackers would probe election offices well in advance in order to find ways to break into their computers. Closer to the election, when it was clear from polling data which states would have close electoral margins, the attackers might spread malware into voting machines in some of these states, rigging the machines to shift a few percent of the vote to favor their desired candidate. This malware would likely be designed to remain inactive during pre-election tests, do its dirty business during the election, then erase itself when the polls close. A skilled attacker’s work might leave no visible signs — though the country might be surprised when results in several close states were off from pre-election polls.

Could anyone be brazen enough to try such an attack? A few years ago, I might have said that sounds like science fiction, but 2016 has seen unprecedented cyberattacks aimed at interfering with the election. This summer, attackers broke into the email system of the Democratic National Committee and, separately, into the email account of John Podesta, Hillary Clinton’s campaign chairman, and leaked private messages. Attackers infiltrated the voter registration systems of two states, Illinois and Arizona, and stole voter data. And there’s evidence that hackers attempted to breach election offices in several other states.

In all these cases, Federal agencies publiclyasserted that senior officials in the Russian government commissioned these attacks. Russia has sophisticated cyber-offensive capabilities, and has shown a willingness to use them to hack elections. In 2014, during the presidential election in Ukraine, attackers linked to Russia sabotaged the country’s vote-counting infrastructure and, according to published reports, Ukrainian officials succeeded only at the last minute in defusing vote-stealing malware that was primed to cause the wrong winner to be announced. Russia is not the only country with the ability to pull off such an attack on American systems — most of the world’s military powers now have sophisticated cyberwarfare capabilities.

So, yes, it would be good if the votes here were reviewed, if only as an opportunity to explore the potential problems of e-voting machines, rather than as a political ploy. The only problem is that everyone would see it as a political ploy and with political ploys comes general dumpster fires of idiocy.

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]]>that's a good pointhttps://www.techdirt.com/comment_rss.php?sid=20161123/10515836125Wed, 9 Nov 2016 10:46:39 PSTIf You're Blaming Facebook For The Election Results, You're An IdiotMike Masnickhttps://www.techdirt.com/articles/20161109/10350736006/if-youre-blaming-facebook-election-results-youre-idiot.shtml
https://www.techdirt.com/articles/20161109/10350736006/if-youre-blaming-facebook-election-results-youre-idiot.shtmlwhat the election means for tech policy and civil liberties, but the trite setup of the blame game is getting really stupid, really fast. I had already started writing up a response to this silly Vox article about how "Facebook is harming our democracy" before the election (the story came out over the weekend), but now that I'm seeing more and more people (especially in the media) blaming Facebook and "algorithms" for the results of the election, I'm turning it into this post: if you're blaming Facebook for the results of this election, you're an idiot.

Facebook's algorithm and whatever "echo chamber" or "filter bubble" or whatever it may have created did not lead to this result. This was the result of a very large group of people who are quite clearly -- and reasonably -- pissed off at the status quo. Politics has been a really corrupt game for basically ever, and for the past few decades, lots of people have been trying to pretend it wasn't as corrupt as it really is. The fact that Trump is likely to be as corrupt -- if not more so -- than those who came before him didn't matter. People were upset and voted against a candidate who, to them, basically defined the status quo and the problems with the system. This was a "throw the bums out" vote, and many of the bums deserved to be thrown out. That they voted in someone likely to be worse (especially given who he's surrounded himself with so far) wasn't the point. Just as with Brexit, this was a vote of "what we have now ain't working, let's try something different."

It's no surprise many people argued that Clinton was the wrong candidate to go against Trump. She absolutely was. She was the status quo candidate in a time when lots and lots of people didn't want the status quo.

But that's not Facebook's fault. And the idea that a better or different algorithm on Facebook would have made the results any different is just as ridiculous as the idea that newspaper endorsements or "fact checking" mattered one bit. People are angry because the system has failed them in many, many ways, and it's not because they're idiots who believed all the fake news Facebook pushed on them (even if some of them did believe it). Many people don't think Trump will be any good, but they voted for him anyway, because the status quo is broken.

There is a large slice of voters who told exit pollsters they thought Trump was dishonest, had a bad temperament, etc.--but voted for him.

The idea that people are just such suckers they believe whatever Facebook puts in front of them is silly. That's not how it works:

The fundamental problem here is that Facebook’s leadership is in denial about the kind of organization it has become. “We are a tech company, not a media company,” Zuckerberg has said repeatedly over the last few years. In the mind of the Facebook CEO, Facebook is just a “platform,” a neutral conduit for helping users share information with one another.

But that’s wrong. Facebook makes billions of editorial decisions every day. And often they are bad editorial decisions — steering people to sensational, one-sided, or just plain inaccurate stories. The fact that these decisions are being made by algorithms rather than human editors doesn’t make Facebook any less responsible for the harmful effect on its users and the broader society.

Yes, many people are falling for fake or bogus or sensationalized news -- and the Trump campaign expertly took a kernel of truth (that many mainstream media sources didn't want him to win) and spun it into the idea that no media story highlighting his flaws, lies or corruption (no matter how carefully and factually reported) could be believed. But people are believing those stories because they match with their real world experience of seeing how the system has worked (or not worked) for too long.

I've already expressed my concerns about what a Trump presidency will do for the issues that I spend my days focused on -- and it's not good. But as loyal readers here at Techdirt should know well, we've never been particularly supportive of the way things have been running in the government all along -- and that's through 10 years under Democratic presidencies and 8 years under GOP presidencies. The federal government has a long history of doing bad stuff: stomping on free speech and expanding surveillance (who cares about the 1st or 4th Amendments?), pushing policies that will harm innovators in favor of legacy industries (including in both the copyright and patent spaces) and generally disregarding what's best for the public. I fear that Trump will make things significantly worse, but I certainly recognize the need to change the status quo overall. And not because of Facebook's stupid algorithm.

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]]>there's real anger at the status quohttps://www.techdirt.com/comment_rss.php?sid=20161109/10350736006Tue, 8 Nov 2016 13:00:00 PSTTechdirt Podcast Episode 98: Is There A Better Way To Pick A President?Leigh Beadonhttps://www.techdirt.com/articles/20161108/09583835994/techdirt-podcast-episode-98-is-there-better-way-to-pick-president.shtml
https://www.techdirt.com/articles/20161108/09583835994/techdirt-podcast-episode-98-is-there-better-way-to-pick-president.shtml
Well, today's the day. By tomorrow there will be a new President of the United States, and a large segment of the population claiming that they were robbed by the system. But immediate anger aside, that system is hardly above criticism: the Electoral College has had all sorts of unanticipated and often undesirable effects on democracy, and a wide variety of alternatives have been proposed. This week we discuss the question: is there a better way to pick the president?

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]]>election-feverhttps://www.techdirt.com/comment_rss.php?sid=20161108/09583835994Fri, 4 Nov 2016 19:39:00 PDTWashington Post Columnist: If This Democracy Is Going To Stay Healthy, We Need To Start Trusting The FBI MoreTim Cushinghttps://www.techdirt.com/articles/20161103/15401435960/washington-post-columnist-if-this-democracy-is-going-to-stay-healthy-we-need-to-start-trusting-fbi-more.shtml
https://www.techdirt.com/articles/20161103/15401435960/washington-post-columnist-if-this-democracy-is-going-to-stay-healthy-we-need-to-start-trusting-fbi-more.shtml
Trust and respect aren't things someone (or something) holds in an infinite, uninterrupted supply. They're gained and lost due to the actions of the entity holding this extremely liquid supply of trust. Oddly, some people -- like Washington Post's Chris Cillizza -- seem to believe trust and respect should be given to certain "venerated institutions," because to do otherwise is to surrender to something approaching nihilism.

Cillizza starts out with an obvious conclusion:

The FBI has long been an iconic institution in American life. After last week's announcement by FBI Director James Comey that the investigation into Hillary Clinton's private email server continues, it's hard to see it staying that way.

The problem is more Comey's than the FBI as a whole, but neither have done much over their histories to raise their levels of trust and respect. Cillizza notes that several other venerated institutions -- from the Supreme Court to the presidency to public schools have all seen steady declines in public trust, according to polls.

This is to be expected. Trust is easy to lose, but much harder to earn. Our government institutions have done very little to maintain the level of trust and plenty to squander it. If that had been the end of it -- an examination of continually-diminishing trust levels, it would have been fine.

But Cillizza somehow feels that failing to hand over trust and respect these institutions haven't earned -- or haven't protected -- is damaging to the fabric of society… and democracy itself.

Nothing has cropped up to replace these fallen idols. The foundational pieces of society — the things we always knew we could rely on — are no longer foundational. But, with nothing to replace them, we are left rootless, casting about for a new set of institutions on which we can rely. That casting around causes fear and anxiety — and sometimes even anger.

None of those emotions are conducive to a functioning, healthy democracy.

This is far more conducive to a functioning democracy than Cillizza thinks. This democracy (although actually a Constitutional republic, but pedantry) rose from the ashes of venerated, foundational pieces of society. The system was burned to the ground and rebuilt to better serve the constituents, rather than those governing them. What's not conducive to a functioning, healthy democracy are government institutions continually and casually destroying the trust they once had. Venerated institutions shouldn't always remain venerated. They should be questioned aggressively and held accountable for their actions.

Seriously, there's a long list of "venerated institutions" once present in this "healthy, functioning democracy" that almost no one agrees should be granted the respect they once were. Like slavery. Or voting being limited to white males. Or aggressive land-grabs that displaced the native population when we weren't actually just straight up killing them. Or how about the draft? It was once respected as well, but back-to-back failures in wars fought more against ideals than enemies turned it into a sick joke that further proved the notion that a supposed nation of equals was just more of the same old multi-tiered favoritism.

If the FBI doesn't have our trust anymore, it's because it threw it all away. Decades of shady, if not downright abusive, behavior preceded Comey's "lone gunslinger" approach to heading the agency's unofficial political warfare operations.

The decline in veneration for other institutions roughly tracks the increase in transparency and accountability. Freedom of information laws. Citizens with cellphones. A worldwide platform for instant dissemination of information. If trust is at an all-time low, it's because more people are better informed than they ever have been in the history of this nation. And that's exactly the sort of thing that keeps a democracy functioning and healthy.

[Final note: the original version of Cillizza's post contained some rather hilarious inaccuracies about the FBI to buttress his arguments about the agency's venerability. They've since been excised, but the supposed paragons of Bureau virtue included a fictional character and US Treasury agent who never worked for the FBI.]

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]]>buy-into-the-system,-people!https://www.techdirt.com/comment_rss.php?sid=20161103/15401435960Tue, 13 Sep 2016 16:20:22 PDTCuba's Telecom Monopoly Banning Text Messages Containing Words Like 'Democracy'Karl Bodehttps://www.techdirt.com/articles/20160907/11140335461/cubas-telecom-monopoly-banning-text-messages-containing-words-like-democracy.shtml
https://www.techdirt.com/articles/20160907/11140335461/cubas-telecom-monopoly-banning-text-messages-containing-words-like-democracy.shtmlremoved the country from the agency's banned nation list. That allows fixed and wireless companies alike to begin doing business in Cuba as part of an overall attempt to ease tensions between the States and the island nation. And while Cuba has been justly concerned about opening the door to NSA bosom buddies like AT&T and Verizon, it's still apparently not quite ready to give up some of its own, decidedly ham-fisted attempts to crack down on free speech over telecom networks.

A recent investigative report by blogger Yoani Sanchez and journalist Reinaldo Escobar found that the nation has been banning certain words sent via text message with the help of state-owned telecom monopoly ETECSA. The report, confirmed in an additional investigation by Reuters, found that roughly 30 different keywords are being banned by Cuba's government, including "democracy," "human rights," and the name of several activists and human rights groups. Words containing such keywords simply aren't delivered, with no indication given to the sender of the delivery failure.

Initially, the researchers thought this was just incompetence on the part of ETECSA:

"Eliecer Avila, head of opposition youth group Somos Mas, which participated in the investigation, said 30 key words that triggered the blocking had been identified but there could be more.

"We always thought texts were vanishing because the provider is so incompetent, then we decided to check using words that bothered the government," he said. "We discovered not just us but the entire country is being censored," he said. "It just shows how insecure and paranoid the government is."

You can understand some degree of paranoia when you've got the United States and Russia battling over who gets to bone graft surveillance technology into your fledgling communications networks, but the clumsy censorship also isn't too surprising for a nation that still bans advertising across the island.

That said, the real problem for most Cubans remains that broadband and wireless communications is a luxury commodity well out of reach of most residents. Only between 5 and 25% of Cubans even have access to the internet, and while many can access Wi-Fi via hotspots opened just last year, the cost of connection is roughly $2 an hour, or around a tenth of the average monthly Cuban salary. As such, Cubans are "fortunate" in that they can't yet even afford to be comprehensively spied on.

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]]>that'll-workhttps://www.techdirt.com/comment_rss.php?sid=20160907/11140335461Wed, 15 Jun 2016 23:22:23 PDTTPP's Corporate Sovereignty Chapter A 'Threat To Democracy And Regulation'Glyn Moodyhttps://www.techdirt.com/articles/20160614/11325134706/tpps-corporate-sovereignty-chapter-threat-to-democracy-regulation.shtml
https://www.techdirt.com/articles/20160614/11325134706/tpps-corporate-sovereignty-chapter-threat-to-democracy-regulation.shtml
When the negotiations for the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada were concluded in September 2014, the text was finally released after years of secrecy. At the time, the Canadian Centre for Policy Alternatives put together what remains the best overall analysis of the main text's 1598 pages, in a series of studies collectively called "Making Sense of CETA." The same organization has now published a set of analyses looking at key aspects of TPP, entitled "What’s the big deal? Understanding the Trans-Pacific Partnership".

They are all worth looking at, but Techdirt readers will probably be particularly interested in one called "Foreign investor protections in the Trans-Pacific Partnership." It's by Gus Van Harten, a professor at Osgoode Hall Law School of York University in Toronto, Canada, and a well-known commentator on trade law and policy. The first part of his analysis provides a good summary of the world of corporate sovereignty, or investor-state dispute settlement (ISDS) as it is more formally known. The later section looks at some new research that provides additional insight into just how bad corporate sovereignty is for those of us who are not insanely rich.

For example, Van Harten quotes some recent work showing that 90% of ISDS fines against countries went to corporations with over $1 billion in annual revenue or to individuals with over $100 million in net wealth. Similarly, the success rate among the largest multinationals -- those with turnovers of at least $10 billion -- was 71% in the 48 cases they initiated, compared with a success rate for everyone else of 42%. So any claim that ISDS is equally useful to all companies, including small and medium-sized businesses, is not borne out by the facts.

Van Harten also mentions some interesting figures for the financial winners and losers across all known corporate sovereignty cases. The largest corporations ended up with gains of around $6 billion; the thriving ISDS legal industry took home $2 billion; very wealthy individuals received around $1 billion; and large companies picked up another $500 million. As for the countries that were sued by these groups, their losses totaled some $10 billion. That's an important reminder that nations cannot win ISDS cases: the best they can ever hope for is not to lose. And they often do lose, as the high cumulative fines indicate.

Another fascinating insight comes from looking at the percentage of foreign-owned assets (that is, inward foreign direct investment) in the US economy that are covered by ISDS in trade and investment agreements. Currently, it is only around 10%, which is probably why corporate sovereignty is not a big deal for the US public today. If TPP is ratified, another 10% of foreign investments will be covered. But if the TAFTA/TTIP deal with the EU goes through, it would add another 60% to the total -- a huge jump. That would mean that TPP and TTIP together would make nearly all foreign investments in the US subject to corporate sovereignty.

Van Harten highlights another key aspect of TPP that has not received much attention. He points out that TPP goes beyond the older North American Free Trade Agreement (NAFTA), which is between the US, Canada and Mexico, but does not solve its serious problems, despite claims to the contrary:

anything that is apparently better in the TPP compared to NAFTA will very likely be lost in practice because a U.S. investor can bring a claim under NAFTA instead of the TPP. Also, anything worse in the TPP would not be displaced by NAFTA because a foreign investor could choose to bring a claim under the TPP. If a foreign investor was unsure which agreement offered the best chance to win compensation, it could bring a claim under the TPP and NAFTA, making a different argument under each and getting compensation if it won under either.

In other words, TPP has been written in such a way that the public always gets the worst of both worlds. Van Harten's chilling summary of the corporate sovereignty provisions in TPP is worth quoting in full:

The TPP would take us in the wrong direction and be very difficult to reverse. It would expand the transfer of power to ISDS arbitrators from legislatures, governments, and courts. The arbitrators would not be accountable like a legislature. They would not be capable of regulating like a government. They would not be independent or fair like a court.

At the core of the TPP's threat to democracy and regulation is the uncertain and potentially huge price tag that its ISDS process would put on any law or regulation that is opposed by a large multinational company or a billionaire investor. The problem is not that foreign investors would be
too big to fail; it is that the TPP would make the biggest and richest ones too risky to regulate.

The TPP was an opportunity for countries to step back from and reform the flawed system of foreign investor rights and ISDS. Instead, the TPP would expand the system massively. That decision is reason enough to reject the TPP in order to protect the established institutions of democracy, sovereignty, and the rule of law in TPP countries.

Anyone who has any lingering illusions that it might be worth signing up to TPP should read this new analysis, which will dispel them rapidly.

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]]>wrong-directionhttps://www.techdirt.com/comment_rss.php?sid=20160614/11325134706Fri, 22 Apr 2016 03:28:00 PDTNew Zealand Government Trying To Streamroller TPP Through Ratification Without Proper Scrutiny Or Public InputGlyn Moodyhttps://www.techdirt.com/articles/20160420/09513334221/new-zealand-government-trying-to-streamroller-tpp-through-ratification-without-proper-scrutiny-public-input.shtml
https://www.techdirt.com/articles/20160420/09513334221/new-zealand-government-trying-to-streamroller-tpp-through-ratification-without-proper-scrutiny-public-input.shtml
Back in February, we noted that the TPP has been officially signed, and that the focus now moves on to ratification by each of the 12 participating countries. On this score, there's been plenty of sound and fury in the US, including bizarre demands to re-negotiate TPP, but less coverage of what is happening elsewhere. As we noted, Canada's ratification has ground to a halt as the new government there launches "widespread consultations." Japan, too, won't be ratifying TPP for a while, for reasons explained by The Mainichi site:

The government and ruling Liberal Democratic Party (LDP)-Komeito coalition decided to put off attempting to ratify the treaty and enact related bills as they determined that a combination of opposition party resistance and the Kyushu earthquake disaster response leaves insufficient time to deliberate the legislation. The administration of Prime Minister Shinzo Abe is not planning to extend the current Diet session, which is scheduled to end on June 1. The government will instead carry the ratification and bills over to an extraordinary Diet session to be convened this autumn, to discuss them again in the House of Representatives for final approval and enactment.

The government in New Zealand, by contrast, seems to be doing everything in its power to ram through TPP as quickly as possible, with little time being given for that full public debate so frequently promised. Even the country's MPs are being stampeded, as Radio New Zealand News reports:

MPs have been given just five days to consider hundreds of submissions on the controversial TPP trade deal after the timeframe was drastically cut from four weeks.

The select committee was originally give a month to write its report and present it back to Parliament.

According to the news item, the committee was due to hear from hundreds of people who were keen finally to make their voices heard. But the government has apparently decided that it just doesn't care what the public thinks:

The tight deadline meant the [MPs'] draft report would be written before the committee had finished hearing all the submissions.

Apparently, the New Zealand government isn't interested in democracy, only timetables:

Opposition members on the committee say they were told yesterday the government wanted to cut down the time they had to analyse the submissions, so the legislation could get through by the end of the year.

Nor are MPs and the public the only ones being treated in a shabby way. So is the Waitangi Tribunal, which is an important commission charged with investigating and making recommendations on claims brought by the indigenous Māori people relating to actions by the New Zealand government. Because the select committee of MPs examining TPP will produce its report earlier than expected, the Waitangi Tribunal also finds itself with little time to consider the issue properly. An article on the Scoop site suggests that might be intentional:

"Why the government suddenly announced it is fast-tracking the report date for the select committee considering the Trans-Pacific Partnership Agreement (TPPA) from the end of May to 4 May is now clear.

It gives the Waitangi Tribunal three rather than seven weeks to produce its urgent report on the claim brought by prominent Maori that the Agreement violates the Crown's obligations under the Treaty of Waitangi", says Professor Jane Kelsey who has been advising the claimants.

What makes the situation even more worrying for New Zealanders is something Techdirt wrote about a couple of months ago: the fact that even if TPP fails, it seems that laws brought in to comply with the terms of the treaty would not be rolled back by the New Zealand government. That's an extremely good reason to take things slowly and carefully -- not to rush ahead recklessly as is currently happening.

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]]>so-much-for-that-'don't-worry,-you-can-debate-it-when-it's-finished&https://www.techdirt.com/comment_rss.php?sid=20160420/09513334221Tue, 8 Mar 2016 15:31:55 PSTTwo Former White House Tech Advisors Tell The President To Actually Be Transparent About Trade DealsMike Masnickhttps://www.techdirt.com/articles/20160304/23565933812/two-former-white-house-tech-advisors-tell-president-to-actually-be-transparent-about-trade-deals.shtml
https://www.techdirt.com/articles/20160304/23565933812/two-former-white-house-tech-advisors-tell-president-to-actually-be-transparent-about-trade-deals.shtmlarguing that the White House has one last chance to actually be transparent in trade negotiations as it moves forward with the TTIP agreement with the EU. The piece notes that part of the reason that the TPP agreement is in so much trouble was its secrecy:

Largely due to the secrecy of the negotiation process, the TPP long bred suspicion. When its terms finally became public last fall, opposition to the process quickly hardened into opposition to the agreement’s terms – which both Democrats and Republicans say need improvement before it can be passed. The text has been 10 years in the making, but only recently did the public get access to its terms. Since multiple leaks made most of the negotiated terms an open secret, why did the Administration wait so long to formally disclose the text?

They admit that the USTR's standard answer -- that trade negotiations rely on secrecy, and you don't want to give up an advantage -- may have some validity, but argue that it's almost certainly outweighed by other factors. They then raise three key points for being much more open and transparent on trade deals (all issues we've raised in the past):

Quality suffers when there is no free and open debate.

"Exporting U.S. law" is hard and can lead to unintended consequences.

Trade policy should reflect our democratic ideals

To be honest, all three of these are basically the same argument phrased differently, but they're all valid points. And they then urge the White House and the USTR to take the (not really that big) step of opening up the negotiating texts of the TTIP agreement. Since it's just between the EU and the US, it's not even as complicated as the TPP where you were negotiating with over a dozen countries. And the EU has been much more transparent in negotiating its trade deals, and has pledged to be on the TTIP as well. So, really, why does the USTR continue to take such an undemocratic, archaic viewpoint in negotiating these deals? The only explanation that makes sense is that it's the best way to sneak in favors for certain industries -- and given the ongoing "revolving door" between the USTR and certain large, legacy industries, perhaps that really does explain most of the issue.

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]]>what-a-concepthttps://www.techdirt.com/comment_rss.php?sid=20160304/23565933812Fri, 22 Jan 2016 19:39:00 PSTDirect Democracy: Successful Petition Gives Swiss Citizens Chance To Vote Against New Surveillance LawGlyn Moodyhttps://www.techdirt.com/articles/20160120/08561933389/direct-democracy-successful-petition-gives-swiss-citizens-chance-to-vote-against-new-surveillance-law.shtml
https://www.techdirt.com/articles/20160120/08561933389/direct-democracy-successful-petition-gives-swiss-citizens-chance-to-vote-against-new-surveillance-law.shtml
A common lament these days is that people have no real political power. Yes, elections take place, but after that, politicians just seem to do what they want, with little concern for what the public really thinks about the laws that they push through, as many stories here on Techdirt indicate. In particular, there is generally no mechanism to cancel a new law except by waiting for the next elections, and voting for a party that might repeal it. Often that's not an option, which means the public has no way to stop harmful legislation from going into effect.

Most assume that's just the way things are, but the example of Switzerland shows that's not the case. Citizens there have a number of options if they want to influence politicians directly. For example, when new laws are passed, they can collect signatures in support of a formal referendum on the measure:

if 50,000 signatures are collected from Swiss voters or eight cantons [Swiss states] demand a referendum within 100 days, then a popular vote is held.

the Swiss parliament passed a new surveillance law known as the Nachrichtendienstgesetzt (NDG) or la Loi sur le renseignement (Lrens). The law would have severely curtained privacy rights in Switzerland. Due to our use of end-to-end encryption, the ProtonMail secure email service would not be negatively impacted by the new law. However, we strongly believe in protecting privacy rights, so together with other opposition groups, we decided to mount a challenge against the new law. Due to Switzerland's unique system of direct democracy, any law can be challenged by collecting 50,000 signatures within a period of 3 months after the passage of the law.

Today, we are happy to announce that this effort has succeeded and this afternoon at 13:30h, the referendum will be officially presented to the Swiss government in Bern. This means at the next election, the Swiss surveillance law will be put to a public vote by the entire country, and for once, the people and not politicians will decide the future of privacy in Switzerland.

That's a pretty amazing result, not least because signatures had to be physical ones on pieces of paper, which then had to be verified before they could be counted towards the threshold figure of 50,000. In the end, over 70,000 signatures were sent in, 64,500 were processed, and 55,000 were certified. The success of this exercise in direct democracy contrasts painfully with how things are proceeding elsewhere around the world. In too many countries, new surveillance laws are being rushed through with little scrutiny from politicians, and no input from the public.

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]]>time-to-watch-Switzerlandhttps://www.techdirt.com/comment_rss.php?sid=20160120/08561933389Tue, 10 Nov 2015 23:18:00 PSTColorado Residents Vote Overwhelmingly In Favor Of Municipal BroadbandKarl Bodehttps://www.techdirt.com/articles/20151104/11595932721/colorado-residents-vote-overwhelmingly-favor-municipal-broadband.shtml
https://www.techdirt.com/articles/20151104/11595932721/colorado-residents-vote-overwhelmingly-favor-municipal-broadband.shtmlpre-empt such laws in Tennessee and North Carolina, something that was immediately met with hand-wringing and lawsuits from the broadband industry and its allies.

In Colorado last week voters got the chance to side step that state's awful protectionist state law, SB 152. SB 152 was a 2005 product of lobbying from Comcast and CenturyLink, and required communities jump through numerous hoops should they want to simply make decisions regarding their own, local infrastructure. Like all such laws the ISP pretense was that they were simply looking to protect taxpayers from financial irresponsibility, though it's abundantly clear the real goal was to prop up and protect the dysfunctional broadband duopoly status quo.

Over the last few years ballot initiatives have allowed several Colorado communities like Boulder, Montrose, and Centennial to take back their right to determine their infrastructure needs for themselves. Last week 43 Colorado communities - 26 cities and towns; 17 counties -- all voted overwhelmingly to also ignore Comcast and CenturyLink's law moving forward. And in all of them, the vote wasn't even close:

"This year, results were similar as the majority of voters supported local measures with over 70 percent of ballots cast. In Durango, over 90 percent of voters chose to opt out of restrictive SB 152; Telluride voters affirmed their commitment to local authority when over 93 percent of votes supported measure 2B. Many communities showed support in the mid- and upper- 80th percentile."

ISPs were able to pass twenty such laws in large part because, by framing community broadband efforts as "socialism run amok" and a dangerous infringement on free enterprise, they were able to distract the public with its own partisan bickering. But the reality is that there's nothing partisan about letting communities decide for themselves their best path forward. Similarly, most municipal broadband networks have been built in Conservative cities, suggesting that wanting next-generation networks in the face of market failure has pretty sensible bipartisan support.

Again, these networks wouldn't be getting built if locals were happy with their broadband options. But instead of competing and improving their networks, mega-ISPs threw campaign contributions at state legislatures, who were more than happy to help protect these uncompetitive broadband fiefdoms and ensure these contributions kept flowing. Fortunately, with the rise of Google Fiber and other ad-hoc deployments (like from Tucows) these bills have seen renewed attention, thanks to the fact that low ROI areas need public/private cooperation if they're even to be updated.

Of course Colorado's awful state law still exists, and it's absurd that Colorado towns and cities have to head to the ballot box (and spend additional money on referenda) simply to reclaim their local rights. Still, between the FCC's attempt to set precedent in North Carolina and Tennessee, and Colorado's decision to stand up to the mega-ISPs, it looks like fifteen years of apathy to this kind of broadband protectionism is finally coming to an end. If you're curious, check out this great map by Community Networks -- detailing which towns have embraced community broadband, and which states have passed protectionist laws.

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]]>deconstructing-protectionismhttps://www.techdirt.com/comment_rss.php?sid=20151104/11595932721Tue, 25 Aug 2015 12:45:00 PDTTechdirt Podcast Episode 39: Technology's Impact On DemocracyLeigh Beadonhttps://www.techdirt.com/articles/20150825/11372132060/techdirt-podcast-episode-39-technologys-impact-democracy.shtml
https://www.techdirt.com/articles/20150825/11372132060/techdirt-podcast-episode-39-technologys-impact-democracy.shtml
From e-voting and online petitions to broad new avenues of communication between politicians and the public, technology is changing democracy, and has the potential to do so even more. This week we're joined by Catherine Bracy, the Technology Field Officer for Obama For America in 2012, to discuss the current and future impact of rapidly changing technology on the democratic process and whether these impacts have been "good" or "bad."

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]]>voice-of-the-peoplehttps://www.techdirt.com/comment_rss.php?sid=20150825/11372132060Mon, 3 Aug 2015 05:53:00 PDTTPP Will Override Five Years Of Democratic Discussion About Software Patents In New ZealandGlyn Moodyhttps://www.techdirt.com/articles/20150802/00592731822/tpp-will-override-five-years-democratic-discussion-about-software-patents-new-zealand.shtml
https://www.techdirt.com/articles/20150802/00592731822/tpp-will-override-five-years-democratic-discussion-about-software-patents-new-zealand.shtml
The latest news is that the supposedly "final" round of TPP negotiations has failed to produce an agreement, although some "technical" discussions seem to be continuing on the side in an attempt to overcome at least some of the remaining differences. Despite the fact that negotiators are claiming that most of TPP is finished, there are no signs that the corresponding text will be released, which means that people have to fall back on leaks to find out what is being negotiated in their name.

[President of the New Zealand Open Source Society Dave] Lane said leaks of the negotiating position show that at one point only Mexico was holding the line on software patents and New Zealand appeared to have already conceded.

The implication is New Zealand's new software patent law, passed just two years ago, will need to be reversed if the TPPA is inked.

Lane went on to echo a point Techdirt made about TPP a couple of years ago:

if New Zealand hobbles the domestic software market by adopting US strong IP, strong patent and copyright terms, then we are effectively "killing in the cradle" an industry that is projected to soon surpass dairy.

Strong IP, he said, was used by incumbents to block innovation and competition from would-be competitors and disruptors.

A strong software industry offers a weightless export that allows New Zealand to rise above the commodity fray of dairy, meat production and timber.

In other words, desperate to sign up to the TPP agreement, however bad, the New Zealand government seems willing to sacrifice 21st-century growth for the sake of shoring up 19th-century industries -- and to ride roughshod over democracy along the way. So much for the common but bogus claim that trade agreements like TPP or TAFTA/TTIP will not require laws to be changed.

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]]>desperate-for-a-deal,-any-dealhttps://www.techdirt.com/comment_rss.php?sid=20150802/00592731822Mon, 2 Feb 2015 02:02:10 PSTLess Than A Week After Failing Last Attempt, UK Lords Try To Sneak Through Snooper's Charter Once AgainMike Masnickhttps://www.techdirt.com/articles/20150131/06385429867/less-than-week-after-failing-last-attempt-uk-lords-try-to-sneak-through-snoopers-charter-once-again.shtml
https://www.techdirt.com/articles/20150131/06385429867/less-than-week-after-failing-last-attempt-uk-lords-try-to-sneak-through-snoopers-charter-once-again.shtmlrush through the "Snooper's Charter" that had previously been rejected by the UK. The bill, of course, was about giving the government tremendous levels of access to everyone's electronic data with little oversight. Thankfully, despite having little notice, the attempt caused a flurry of attention and the Lords were forced to back off the plan. It seemed like another good "win" for supporters of privacy and democracy.

Many people still expected the UK government to try again, but few expected it would happen so soon. Yes, less than a week after having the last attempt rejected vocally, the same group of Lords are trying yet again:

On Saturday, ahead of a “report stage” debate on Monday (the Counter-Terrorism and Security Bill is almost fully baked), Lords West, Blair, Carlile and King introduced a new amendment that appears to be almost identical to the last, and to the Communications Data Bill before it.

Again, this new amendment would force “telecommunications operators” – which these days includes the likes of Facebook and Skype, as well as traditional telcos – to store communications metadata for up to a year and hand it over to U.K. authorities when requested. This data retention regime may require the providers to install “specified equipment or systems.”

As David Meyer at GigaOm notes, just as with the last time, this bill lets any "relevant public authority" get access to the data, meaning that such data will be widely accessed and almost certainly widely abused as well. It appears that there are only very minor cosmetic changes between what was proposed and rejected last week and what has been proposed this week. Of course, it won't surprise you to learn the backgrounds of those pushing for this information:

The four peers in question all come from the security establishment — a former Metropolitan Police commissioner (Blair), a former secretary of defense (King), a former minister for security and counter-terrorism (West), and a former government anti-terror adviser (Carlile).

Meyer also quotes Lord King saying that he doesn't know about or understand the various new social media services like WhatsApp and SnapChat, "but what is absolutely clear is that the terrorists and jihadists do" -- which is why he thinks the Snooper's Charter is needed. In other words, he admits his own ignorance, but doesn't seem to care, because he is ruled by irrational fear. That does not seem like a particularly intelligent way to govern or to legislate.

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]]>total-failurehttps://www.techdirt.com/comment_rss.php?sid=20150131/06385429867Fri, 17 Oct 2014 07:53:04 PDTFinnish Parliament Refuses To Consider Crowdsourced Copyright Law -- Or Any Other Bill Drafted By The PublicGlyn Moodyhttps://www.techdirt.com/articles/20141016/09594728848/finnish-parliament-refuses-to-consider-crowdsourced-copyright-law-any-other-bill-drafted-public.shtml
https://www.techdirt.com/articles/20141016/09594728848/finnish-parliament-refuses-to-consider-crowdsourced-copyright-law-any-other-bill-drafted-public.shtmlcrowdsource proposals for new laws in Finland. As we reported, the Citizen's Initiative Act requires the Finnish Parliament to process any bill that collects 50,000 signatures from citizens of voting age. Last year, a bill to make copyright more balanced and better suited to the digital age managed to gather the requisite number of signatures, offering hope that it would be presented to the Finnish Parliament for a vote. But as TorrentFreak explained more recently, the Finnish Parliament's Education and Culture Committee recommended that the "Common Sense For Copyright" bill should be rejected. TorrentFreak quotes the digital rights group EDRi's explanation of what happened:

"In its report, the Committee notes that the initiative suggests several ambitious amendments, but that it considers it impossible to propose, based on the initiative, even partial changes to the existing copyright law," EDRi notes.

"The report states that the initiative includes internal contradictions and that many of the amendments it suggests are too significantly incompatible with the current legislation."

That's rather telling, because the measures in "Common Sense For Copyright" are hardly radical:

The draft, the brainchild of the Open Ministry nonprofit, calls for reduced penalties for copyright infringement and current penalties to be applied only in cases of a commercial scale. Fair Use provisions would also be expanded, alongside exemptions for those wishing to backup purchased media and time-shift commercial content.

The fact that the Parliamentary committee thought that even these mild measures were "too significantly incompatible with the current legislation" underlines just how great the gulf is between actual copyright law and what many people feel would be fair. Sadly, a report on the Finnish public broadcasting company YLE's website confirms that not only did the Finnish Parliament refuse to consider the bill, it has dismissed out of hand every crowdsourced bill that reached the 50,000 threshold:

Each of the six citizen's initiatives that have proceeded through the proper channels to reach the parliamentary floor for discussion has failed. The Finnish Parliament says it doesn't have the time to hear them and they can’t be moved to another date. Activists say technical shortcomings are poor justification for the slowness of the process.

That's a truly disappointing end to a story that began on a hopeful note. When politicians won't even allow the public these tiny expressions of democracy -- just as the European Commission refused to allow a purely symbolic online petition against TAFTA/TTIP to go ahead -- is it any wonder that people feel disenfranchised and disenchanted with politics these days, or that they are starting to take to the streets as a result?

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]]>democracy,-who-needs-it?https://www.techdirt.com/comment_rss.php?sid=20141016/09594728848Fri, 23 May 2014 15:03:00 PDTProud Voters Tweeting In The UK Could Receive Jail Time And A FineTimothy Geignerhttps://www.techdirt.com/articles/20140522/11455127333/proud-voter-tweeting-uk-comes-with-jail-time-fine.shtml
https://www.techdirt.com/articles/20140522/11455127333/proud-voter-tweeting-uk-comes-with-jail-time-fine.shtml
As anyone who reads my posts can probably tell, I really love politics. I like talking about issues, I like playing polemicist with politicians, and I really, really like voting. There's a sense of pride in voting, where even if I ultimately know my contribution to the running of our society is a small one, I'm still engaged in it. I'm not alone, either. Lots of people like to share the fact that they voted and what they voted for. That kind of pride is a good thing, I think.

While the fear over voting-booth selfies during Thursday's Local and European Elections was mostly exaggerated, there is a real danger lurking inside polling stations for British voters: Sharing photos of completed ballots—something many appear keen to do—is against U.K. law. The Register reports that under various parts of Section 66 of the Representation of the People Act 1983, it is an offence to make public someone's vote after a mark has been made on the paper. Many citizens don't appear to have realised this and have proudly been indicating who they have voted for on Twitter.

Now, my understanding for the reasons of this law is that the government is attempting to minimize any chance of voter intimidation or influencing the votes of others through this ballot sharing. The general idea is that if everyone keeps their voting ballot a secret, the larger public's vote will be more impartial. Here is my nuanced and well-reasoned response to the theory and the accompanying law: "Hahahahahahahahaha!"

The entire notion that keeping pictures and social media out of the vote-sharing game will accomplish anything at all is inherently silly. The culture of politics today is so completely open for discussion that there is an entire industry built around it: the political theater on talk-radio and the twenty-four hour news channels. Any pretense about getting citizens to not talk about who and what they voted for is so naive that it's a wonder the entire notion hasn't been laughed off of the British Islands by now. And, as we've covered before, it isn't just that side of the ocean, either. Right here at home, in Wisconsin, citizens can also face fines and jail time for sharing their completed ballots on social media.

The point is that now that the culture of sharing has grown such that this many people are violating this law, the entire purpose of the law is logically obviated. After all, if huge numbers of people are sharing their ballots, the intimidation factor kind of goes away. It's just a matter of pride from involved citizens. Criminalizing that pride doesn't make any sense.

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]]>sharing-is-caringhttps://www.techdirt.com/comment_rss.php?sid=20140522/11455127333Thu, 17 Apr 2014 00:08:00 PDTHow Corporate Sovereignty Threatens DemocracyGlyn Moodyhttps://www.techdirt.com/articles/20140416/09560626932/how-corporate-sovereignty-threatens-democracy.shtml
https://www.techdirt.com/articles/20140416/09560626932/how-corporate-sovereignty-threatens-democracy.shtml
As people have begun to learn about corporate sovereignty through plans to include it in TAFTA/TTIP, the European Commission has been trying to scotch the idea that it might allow corporations to dictate policies to nations. Here, for example, is a comment in the Commission's main TTIP FAQ, which tries to answer the question "Why is the EU including Investor to State Dispute Settlement in the TTIP?":

Including measures to protect investors does not prevent governments from passing laws, nor does it lead to laws being repealed. At most, it can lead to compensation being paid.

Those are all true statements in theory, but that's probably not much comfort to Romania, which has been discovering the harsh reality in the long-running discussions over whether to allow a Canadian company to create a huge open-cast gold and silver mine in the country. Here's what happened last year:

Gabriel Resources Ltd. (GBU), backed by billionaire hedge-fund manager John Paulson, threatened to seek as much as $4 billion of damages should Romanian lawmakers vote to oppose its gold mine project in the country.

"We have a very, very robust case, and we believe we have claims up to $4 billion that we can send to the Romanian state," Gabriel Resources Chief Executive Officer Jonathan Henry said today in a telephone interview. "We will go ahead and do that if the vote is against."

As the European Commission notes, the existence of a bilateral investment treaty with Canada that includes a dispute settlement mechanism did not, in itself, stop the Romanian politicians from blocking the gold mine project in the parliamentary vote, which took place in December 2013. So everything's fine, right? Democracy prevailed, and the people were heard. After all, "at most", as the FAQ helpfully reminds us, Romania will have to pay $4 billion damages at some point.

Except that, for a country with a GDP of less than $200 billion in 2013, this represents 2% of the country's entire economic production. That seems an incredibly high price to pay for the exercise of basic democracy. The danger is that faced with the threat of such enormous fines, other parliaments will lack the courage shown by Romanian's politicians, and choose to ignore the will of their people by meekly acquiescing to corporate demands.

Does GBU deserve some compensation if a project is cancelled by the local government because of widespread public concerns about its safety? Perhaps -- although business always involves some risk, and foreign investment is no different. If a company is really worried about that aspect, it can take out insurance -- from the World Bank, for example. Does GBU deserve to be awarded 2% of a country's GDP, paid for by the citizens of a land struggling to raise its living standards? That hardly seems fair. And yet it's precisely what ISDS could allow, because the arbitration panel that decides such corporate sovereignty cases is unconstrained in what it can award, and not at all concerned with what the knock-on effects might be.

But the politicians making up the European Commission should be, since they are supposed to represent the 500 million European citizens that pay their salaries. The fact that they are pushing as hard as they can for ISDS in TAFTA/TTIP shows which side they are really on, and that they are quite happy to put corporations before nations, and profits before people.

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]]>at-mosthttps://www.techdirt.com/comment_rss.php?sid=20140416/09560626932Wed, 2 Apr 2014 14:04:00 PDTNew We The People Petition Asks White House To Respond To Eligible Petitions Within 30 DaysTim Cushinghttps://www.techdirt.com/articles/20140401/16195626771/new-we-people-petition-asks-white-house-to-respond-to-eligible-petitions-within-30-days.shtml
https://www.techdirt.com/articles/20140401/16195626771/new-we-people-petition-asks-white-house-to-respond-to-eligible-petitions-within-30-days.shtml
This is what happens when you ignore the public. Are you happy, We the People?

WE PETITION THE OBAMA ADMINISTRATION TO:

Respond to all Whitehouse.gov petitions that get over 100k signatures within one month.

Whitehouse.gov petitions were intended to give the public a voice. The idea is that if more than 100,000 people all feel strongly enough about something to hand over their home address and personal email to the government and complete a nearly impossible CAPTCHA, then the President of the United States should have to respond to them. Because... democracy.

Here's the problem: there are dozens of Whitehouse.gov petitions that have received more than 100k signatures, but have gone months and even years without a response (1). That's not improving transparency, it's the same gov't spin we've always had. So what will it, Obama, hypocrisy or democracy? Sign!

It's a nice idea. There are petitions that appear to be permanently stuck to the administration's backburner while others that haven't even met the 100k signature threshold have been answered simply because the White House has a canned response on hand.

Others require more thoughtful answers or (would) force the administration to take a stance on controversial issues, something it clearly would rather not do. The average wait for a response has slipped to nearly 300 days. Among the petitions still being actively ignored by the White House are ones dealing with pardoning Edward Snowden and firing the attorney who handled Aaron Swartz's prosecution.

This new petition, created on April 1st, is clearly tongue-in-cheek. While there are some petitioners who mistake petitions for binding contracts, this probably isn't one of them. However, it does go meta on the issue, potentially putting the administration in the position of agreeing to address petitions in a timely fashion. This could prove uncomfortable for the White House since it appears it would rather ignore certain petitions until the White House changes hands in 2016.

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]]>yo-dawg-i-herd-you-like-petition-responses...https://www.techdirt.com/comment_rss.php?sid=20140401/16195626771Thu, 19 Dec 2013 23:56:04 PSTTime To Rethink Democracy In A Digital AgeMark Ryan and Gurchetan Grewal, TheConversationhttps://www.techdirt.com/articles/20131217/00183425585/time-to-rethink-democracy-digital-age.shtml
https://www.techdirt.com/articles/20131217/00183425585/time-to-rethink-democracy-digital-age.shtml
True democracy is not just about casting a vote every five years. It means citizens being fully involved in the proposal, development and creation of laws. The Commission on Digital Democracy currently being established will consider what part technology can play in helping people to take an active part in the way the country is run.

The commission is setting its sights on "Parliament 2.0", a vision of the future in which citizens participate in online elections, electronic referendums and richer relationships with their political representatives.

In recent years, we've seen technology help people become more involved in debate about all aspects of society. So it is clear that it can play a much greater role in political participation too. As the Commission gets started, it's a good time to think about what we want our digital democracy to look like. There is inspiration to be found all over the web.

Wikipolitics

Technology can enable direct participation in the democratic process, without relying on representatives and without the citizen even needing to leave the comfort of their home.

One particularly useful tool in the quest for a digitally engaged electorate will be online forums. These can be built to manage discussions about proposed legislation in a structured way, making it easy for citizens to participate meaningfully.

Politicians and policymakers can use online forums to crowd-source expertise and the views of citizens on their plans – and to refine their proposals based on what they get back. This "direct democracy" would allow for laws to be based on genuine citizen deliberation rather than merely aggregating the preferences of citizens into a single vote at the beginning of each electoral cycle.

Wikipedia is an example of how this system might work, but it also shows some of the problems that can arise when technology and democracy mix.

Wikipedia has relatively little mechanism for coordinating edits, instead allowing editors to work on their own. Despite this decentralized approach, the quality of articles is generally very high. On the down side, edit wars and sock puppetry – when individuals use multiple user identities to create the impression that their views are shared by others – are an enduring concern.

To help make Wikipedia a trustworthy source, editors can build their reputation by establishing a track record of constructive behavior. Wikipedia has a hierarchy of users for administrative purposes, based on community approval, but all users are considered to have equally valid opinions regarding Wikipedia content. The emphasis is on building consensus; an arbitration committee deals with disputes that remain unresolved.

Reddit, rate it, vote it

More formal mechanisms are to be found elsewhere online that could help provide the kind of format and structure that might be needed to produce good legislation. In Yahoo! Answers, for example, readers can vote up and vote down contributions made by others. Writers who are voted up gain points that indicate their good reputation.
Other question-and-answer forums, such as Reddit and Stack Overflow, use similar mechanisms. This kind of collaboration can be further improved using the kind of real-time, simultaneous editing provided by Google docs.

But again, there are perils. Time wasters, product pushers and disruptive trolls are bad news in online forums and can disrupt the way they operate. In the context of digital democracy, the potential for damage is even higher.

We will need to develop mechanisms that would make it possible for everyone to get involved in Parliament 2.0 in a fair and transparent way. This includes preventing abuse by lobbyists, special-interest groups, and extremists, who may try to thwart the mechanisms for non-democratic purposes. Unlike in traditional voting, which provides each person with one vote, we can't assume that everyone will participate in digital democracy equally. That makes it quite difficult to define fairness. It is also difficult to balance accountability (needed to prevent trolling) and privacy (needed to allow free expression).

Online voting

Computer scientists have made great progress in figuring out how online elections could be made secure. One important idea is to design systems that enable outcome verifiability. This would allow citizens to check that the outcome of an election really does match the votes cast.

To ensure free and fair elections, we also need a property called incoercibility. This means voters cannot sell their vote, or be forced to vote in a particular way. Online voting systems with these features are being developed by researchers around the world and this will soon change the way we participate in elections.

The hope is that, if well-designed and implemented, mechanisms for digital democracy could be built that would greatly increase societal inclusiveness and cohesion, as well as lowering the costs of making democracy work.

Mark Ryan is a Professor of Computer Security at University of Birmingham. Gurchetan Grewal is a PhD student in Computer Security at the University of Birmingham. Both receive funding from EPSRC for computer security research, including the security of online voting mechanisms. Grewal works on the project "Trustworthy voting systems" funded by EPSRC.

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]]>how-might-it-workhttps://www.techdirt.com/comment_rss.php?sid=20131217/00183425585Tue, 10 Dec 2013 12:08:19 PSTUSTR Says TPP Must Be Kept Secret, Because The Public Is Too Stupid To Understand ItMike Masnickhttps://www.techdirt.com/articles/20131210/05541825518/ustr-says-tpp-must-be-kept-secret-because-public-is-too-stupid-to-understand-it.shtml
https://www.techdirt.com/articles/20131210/05541825518/ustr-says-tpp-must-be-kept-secret-because-public-is-too-stupid-to-understand-it.shtmlthat did not happen, though they claim to have made substantial progress and will meet again next month. From the reports of people there, the negotiators made sure that public interest groups were excluded from even the press briefing about the negotiations, which should tell you all you need to know about what the negotiators think of the public. But, in case you weren't sure, the USTR, Michael Froman, has finally explained why the TPP negotiating positions must be kept secret. Apparently, all of us in the public, are too fucking stupid to understand the important work that he's doing, and we might "misunderstand" it. Therefore, we peons must be kept in the dark, while important people like himself negotiate on our behalf. According to Jamie Love:

Froman said if the text was public, people would misunderstand "negotiating positions."

In other words, the USTR is not a fan of democracy.

If you think the public is too stupid to understand the public policy positions you're negotiating for, then you shouldn't be in that job.

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]]>democracy-in-action!https://www.techdirt.com/comment_rss.php?sid=20131210/05541825518Fri, 25 Oct 2013 10:55:12 PDTNSA Defender Argues That Too Much Transparency Defeats The Purpose Of DemocracyMike Masnickhttps://www.techdirt.com/articles/20131024/13173225006/nsa-defender-argues-that-too-much-transparency-defeats-purpose-democracy.shtml
https://www.techdirt.com/articles/20131024/13173225006/nsa-defender-argues-that-too-much-transparency-defeats-purpose-democracy.shtmlposted the testimony he intended to give, in which he makes this incredible claim:

Transparency is good. Too much transparency defeats the very purpose of democracy.

The details of this claim are, obviously, a lot more nuanced, but it seems like it's built on a false premise: that people are seeking absolute and complete transparency in everything that the government does. While that may be true in some cases, it's a very extreme minority. Most people are merely arguing that there are specific things that the government does in our name, which (often by law or Constitution) require significantly more transparency. But, Rosenzweig sets up this strawman to suggest that those arguing for greater transparency don't recognize that there can be any secrecy.

Madison understood that transparency was not a supreme value that trumped all other concerns. He also participated in the U.S. Constitutional Convention of 1787, the secrecy of whose proceedings was the key to its success. While governments may hide behind closed doors, U.S. democracy was also born behind them.

Right, but at the end of that process, it was made very, very public. Not so with NSA surveillance. So this is a total red herring. Imagine if the US Constitution were not just written in secret, but then kept that way? Furthermore, in retrospect, it's difficult to see why it even made sense for the Constitutional Convention to have been secret in the first place. There's really no reason why the negotiations and debates couldn't have been done publicly.

In the new domain of dataveillance, the form of oversight should vary depending upon the extent to which transparency and opacity are necessary to the new powers authorized. Allowing some form of surveillance is vital to assure the protection of American interests. Conversely, allowing full public disclosure of our sources and methods is dangerous – identifying publicly how we conduct surveillance risks use of that information by terrorists and, in turn, draws a roadmap of which threats are not known. Thus, complete transparency will defeat the very purpose of disclosure and may even make us less secure.

This is the only place where Rosenzweig seems to come close to actually defending his initial statement that "too much transparency defeats the very purpose of democracy," and it's a very, very weak sell. If his initial premise is true, then he appears to be arguing that "the purpose of democracy" is to "protect us from terrorists." That's not true. It's a fundamental error in his analysis. In fact, it can be very strongly argued that the opposite is true: we've long agreed that trading lives for freedom is part of the American Way. Patrick Henry argued "give me liberty or give me death." He didn't argue that we needed to give up liberties to protect him from death.

Furthermore, it's patently and obviously false that public disclosure of how surveillance is conducted makes those surveillance methods useless. For decades it has been public knowledge that law enforcement can wiretap phone lines. And yet it remains a useful surveillance tool. Yes, some terrorists will figure out ways around it, but (as many people noted), most terrorists were already well aware that any electronic communication could and would be tracked, and they were careful to use other means when possible. Furthermore, the goal of a free society should not be to stop terrorists from any possible way of communicating in secret, but to recognize that this is going to happen no matter what, and to focus on alternative means of policing, intelligence and law enforcement to do our best to protect against it.

In the end, I have to think that Patrick Henry's rallying cry of "give me liberty or give me death" is a hell of a lot more American that Rosenzweig's surveillance state apologism of "too much transparency undermines democracy." We should be living in a country that stands behind the first statement and rejects, wholeheartedly, the cowardice and shamefulness of the latter.

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]]>oh-really?https://www.techdirt.com/comment_rss.php?sid=20131024/13173225006Mon, 14 Oct 2013 08:37:05 PDTSnowden: DOJ Won't Prosecute Official For Lying, But Will Stop At Nothing To Persecute Someone For Telling The TruthMike Masnickhttps://www.techdirt.com/articles/20131014/00101124857/what-does-it-say-when-us-wont-prosecute-official-lying-to-congress-will-stop-nothing-to-persecute-someone-telling-truth.shtml
https://www.techdirt.com/articles/20131014/00101124857/what-does-it-say-when-us-wont-prosecute-official-lying-to-congress-will-stop-nothing-to-persecute-someone-telling-truth.shtmlall of them together is like the Justice League of Whistleblowers. Wikileaks has now released some short video clips from the dinner they all had together. A few of them are quite interesting. Here's the one I thought most on point:

If you can't watch it, this is the key quote:

It's led us to a point in our relationship with the government, where we have an executive -- a Department of Justice -- that's unwilling to prosecute high officials who lied to Congress and the country on camera, but they'll stop at nothing to persecute someone who told them the truth. And that's a fundamentally dangerous thing to democracy.

That encapsulates so much of what the problem is with everything that's happened in the past few months. It's a point well worth repeating. The other video I really liked was the one where Snowden talked about the problem of secret laws and secret programs and the idea that the government is supposed to be in power with the consent of the governed, but how that's impossible without oversight.

The key statement:

This is not about any particular program. This is about a trend in the relationship between the governing and the governed in Amercia, that is coming increasingly into conflict with what we expect as a free and democratic society. If we can't understand the policies and programs of our government, we cannot grant our consent in regulating them....

Snowden has mostly stayed hidden away from the public eye since all of this began. He's turned down basically all interview requests, so there's been very little shown of him actually speaking, other than the initial video he recorded with Laura Poitras and Glenn Greenwald. Once again, these videos show someone who appears to have thought deeply about what he is doing and why he did it.